Citation Nr: 0408321
Decision Date: 03/31/04 Archive Date: 04/02/04
DOCKET NO. 03-16 480 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUES
1. Entitlement to service connection for hepatitis C.
2. Entitlement to a rating in excess of 10 percent for
status post gunshot wound of right upper chest and lower
neck.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Robinson, Counsel
INTRODUCTION
The veteran served on active duty from January 1973 to
December 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Washington,
District of Columbia.
In November 2003, a hearing was held before the undersigned
Veterans Law Judge in Washington, District of Columbia. A
transcript of the hearing has been associated with the claims
file.
FINDINGS OF FACT
1. While in service, the veteran was hospitalized for eight
days in 1975 for improper use of drugs, heroin, and
hepatitis, viral, type B, (drug related).
2. The veteran has been diagnosed with chronic hepatitis C,
since 2002.
3. A bulk of the competent evidence of record is
overwhelmingly against a finding that the veteran's current
hepatitis C is causally related to the episode of viral
hepatitis, type B in service, or otherwise arose as a result
of service.
4. The symptoms and manifestations of the veteran's status
post gunshot wound to the right upper chest and lower neck
include a history of complaints of pain and numbness in
fingers, but no objective evidence of more than moderate
impairment of Muscle Group XXII.
CONCLUSIONS OF LAW
1. The veteran's hepatitis C, was not incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303 (2003).
2. The criteria for a disability rating in excess of 10
percent for status post gunshot wound to the right upper
chest and lower neck. 38 U.S.C.A. § 1155; 5107 (West 2002);
38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5322 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, the Board is aware of the recent Court
decision in the case Pelegrini v. Principi 17 Vet. App. 412
(2004). In this case it was essentially held that the notice
and assistance provisions of the Veterans Claims Assistance
Act of 2000 (VCAA) should be provided to a claimant prior to
any adjudication of the claim. In this case, the claim had
been filed, and initial adjudication had taken place before
the VCAA was enacted. Thus, preadjudication notice was not
provided nor was it possible. The Court decision did not
contain a remedy under such facts, and there appears to be no
efficient remedy evident given these facts.
As will be discussed below, the VCAA provisions have been
considered and complied with, to the extent applicable to
this issue. There is no indication that there is additional
evidence to obtain, there is no additional notice that should
be provided, and there has been a complete review of all the
evidence without prejudice to the appellant. As such, there
is no indication that there is any prejudice to the appellant
by the order of the events in this case. See Bernard v.
Brown, 4 Vet. App. 384 (1993). Any error in the sequence of
events is not shown to have any effect on the case or to
cause injury to the claimant. As such, the Board concludes
that any such error is harmless and does not prohibit
consideration of this matter on the merits. See ATD Corp. v.
Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v.
Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985).
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096, substantially amended the
provisions of Chapter 51 of Title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2002)).
VA has long recognized that the Department has a duty to
assist claimants in developing evidence pertinent to their
claims. See the former version of 38 U.S.C.A. § 5107 (West
1991); 38 C.F.R. § 3.103(a) (2001). The changes in law have
amended the requirements as to VA's development efforts in
this case, modifying and clarifying VA's duty to assist a
claimant in evidentiary development. See VCAA, supra. See
generally Holliday v. Principi, 14 Vet. App. 280 (2001),
overruled in part on other grounds, Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003).
In addition, VA has published regulations to implement many
of the provisions of the VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (now codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2003)). The intended
effect of these regulations is to establish clear guidelines
consistent with the intent of Congress regarding the timing
and scope of assistance VA will provide a claimant who files
a substantially complete application for VA benefits. The
regulations also provide guidelines regarding VA's duties to
notify claimants of necessary information or evidence and to
assist claimants in obtaining evidence. The regulations,
which in pertinent part are effective as of the date of
enactment of the VCAA, interpret and implement the mandates
of the statute, "and do not provide any rights other than
those provided by the VCAA." 66 Fed. Reg. 45,629. See also
VAOPGCPREC 7-2003 (Nov. 19, 2003), as to retroactivity of the
VCAA regulations.
The VCAA contains a number of new provisions pertaining to
claims development procedures, including assistance to be
provided to claimants by the RO, and notification as to
evidentiary requirements. The Board has carefully reviewed
the appellant's claim file, to ascertain whether another
remand to the RO is necessary in order to assure compliance
with the new legislation. It is noted that the development
of medical evidence appears to be complete. By virtue of the
April 2003 Statement of the Case (SOC), August 2002 letter,
and associated correspondence issued since the appellant
filed his claims, the appellant has been given notice of the
information and/or medical evidence necessary to substantiate
his claims. He was advised that, if he adequately identified
relevant records with names, addresses, and approximate dates
of treatment, the RO would attempt to obtain evidence on his
behalf.
The RO also advised the appellant of the evidence obtained
and considered in deciding his claim, in the SOC issued in
April 2003. In addition, the appellant was advised of the
specific VCAA requirements in the April 2003 SOC. It thus
appears that all obtainable evidence identified by the
veteran relative to his claims has been obtained and
associated with the claims folder, and that he has not
identified any other pertinent evidence, not already of
record, which would need to be obtained for an equitable
disposition of this appeal. See Quartuccio v. Principi, 16
Vet. App. 183 (2002) (noting VA must communicate with
claimants as to the evidentiary development requirements of
the VCAA). See also Charles v. Principi, 16 Vet. App. 370,
373-74 (2002) (requiring that the Board identify documents in
file providing notification which complies with the VCAA).
The Board is aware that, in a decision promulgated in
September 2003, Paralyzed Veterans of America v. Secretary of
Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the Court
of Appeals for the Federal Circuit invalidated the 30-day
response period contained in 38 C.F.R. § 3.159(b)(1) (2003)
as inconsistent with 38 U.S.C.A. § 5103(b)(1). The Court
found that the 30-day period provided in § 3.159(b)(1) to
respond to a VCAA duty to notify is misleading and
detrimental to claimants whose claims are prematurely denied
short of the statutory one-year period provided for response.
But see Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at
38 U.S.C.A. §§ 5102, 5103).
In the present case, the Board notes that during his personal
hearing, the appellant was advised of the changed in law and
refused to waive the 30-day response period. However, the
August 2002 correspondence informed the appellant of the
types of evidence, which would be necessary to substantiate
his claims, and the RO obtained certain medical records and
opinions pertinent to the appellant's claim. The additional
evidence was duly considered by the RO when it issued the
April 2003 SOC. Moreover, during his November 2003 personal
hearing, the veteran stated that he had no more evidence to
submit in support of his claims. In this regard it has been
nearly one year since the veteran was provided notice of the
VCAA provisions. Accordingly there is no prejudice in
proceeding, nor is it necessary to wait the year. See
Veterans Benefits Act of 2003, supra.
Inasmuch as the appellant has had more than ample time during
the pendency of this matter in which to submit supportive
information, evidence, and argument, and has in fact done so,
the holding of the Federal Circuit in its decision in PVA,
supra, has been fulfilled. In any event, the recently
enacted statute, Public Law No. 108-183, has essentially
reversed the holding in the PVA case.
Therefore, the Board finds that no useful purpose would be
served in remanding this matter for more development or
procedural steps. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
benefit flowing to the veteran. The Court has held that such
remands are to be avoided. See Winters v. West, 12 Vet. App.
203 (1999) (en banc), vacated on other grounds sub nom.
Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994). In fact, the Court has stated,
"The VCAA is a reason to remand many, many claims, but it is
not an excuse to remand all claims." Livesay v. Principi,
15 Vet. App. 165, 178 (2001) (en banc). See also Kuzma v.
Principi, 341 F.3d 1237, (Fed. Cir. 2003).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2002).
I. Entitlement to service connection for hepatitis C
A review of the service medical records shows that in
September 1975, the veteran was diagnosed with improper use
of drugs, heroin, and hepatitis, viral, type B, HAA positive,
(drug related). He was also diagnosed with heroin addiction
in September 1975.
VA treatment records dated in July 2002 show diagnoses for
hepatitis C. Also noted is a past medical history for
cocaine dependence, continuous use, drug dependence,
continuous use. The veteran also reported the use of heroin
off and on for approximately twenty-five years.
In a statement received in March 2003, the veteran stated
that he incurred damage to his liver from 1974 to 1976 while
stationed in Germany.
VA treatment records dated in November 2002 show that the
veteran was seen for a liver consultation. It was noted that
he was discharged from a substance abuse rehabilitation
program in September 2002. He had been taking methadone for
four months. He had been clean since May 2002. Hepatitis C
risk factors included, substance abuse intravenous drug abuse
1970s with heroin, blood transfusion, gunshot wound 1975, and
tattoos, negative. The diagnosis was chronic hepatitis C
virus.
During his November 2003 personal hearing before the
undersigned, the veteran testified that he received a blood
transfusion subsequent to a gunshot wound. He received
approximately 2 to 3 units of blood. In 1975, he was
hospitalized and told that he had some liver damage. He
admitted to drug use during service. He received treatment
for liver damage within the last 6 to 9 months at a VA
medical facility.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304
(2003). Where there is a chronic disease shown as such in
service, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b). When a condition noted during
service is not shown to be chronic, or the fact of chronicity
in service is not adequately supported by the record, then a
showing of continuity of symptomatology after discharge is
required to support the claim. Id.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. §
3.303(d). See Cosman v. Principi, 3 Vet. App. 503, 505
(1992). Moreover, a veteran shall be granted service
connection for certain chronic diseases, including cirrhosis
of the liver, although not otherwise established as incurred
in service, if such disease is manifested to a 10 percent
degree within one year following service. 38 U.S.C.A. §§
1112(a)(1), 1101(3); 38 C.F.R. §§ 3.307(a)(3), 3.309(a).
The Court of Appeals for Veterans Claims has consistently
held that, under the law cited above, "[a] determination of
service connection requires a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The
fact that a condition occurred in service alone is not
enough; there must be a current disability resulting from
that condition. See Rabideau v. Derwinski, 2 Vet. App. 141,
144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997).
This principle has been repeatedly reaffirmed by the United
States Court of Appeals for the Federal Circuit, which has
stated that "a veteran seeking disability benefits must
establish . . . the existence of a disability [and] a
connection between the veteran's service and the
disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000).
Finally, under the laws administered by the VA, direct
service connection may be granted only where a disability was
incurred or aggravated in the line of duty and was not the
result of the veteran's own willful misconduct or, for any
claim filed after October 31, 1990, the result of the
veteran's abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a),
1110; 38 C.F.R. § 3.301(a).
Initially, the Board acknowledges that the during his
November 2003 personal hearing before the undersigned, the
veteran reported that he received treatment within the last 6
to 9 months for his hepatitis C at VA medical facility. In
this regard, the Board recognizes that the claims file does
not contain any outpatient treatment records dated within the
stated time period. VA has constructive notice of those
records. See Bell v. Derwinski, 2 Vet. App. 611 (1992).
However, the Board does not find that associating those
records with the claims file is in order at this time since
there is no indication that those records contain any
information that is relevant - that is, there is no
indication that the records refer to a nexus, or link,
between either the appellant's current hepatitis C and
service. When there is no showing of the relevance of
outstanding records, there is no duty to assist. See Counts
v. Brown, 6 Vet. App. 473 (1994). In light of the above, it
is the Board's determination that there is no indication that
there are additional documents that have not been obtained
and would be pertinent to the present issue.
The veteran contends, in essence, that his current hepatitis
C is due to a blood transfusion that was performed during
active service in conjunction with treatment for gunshot
wound of right upper chest and lower neck.
The record shows that the veteran was treated for heroin
addiction while in service in September 1975. He was
diagnosed with improper use of drugs, heroin and hepatitis,
viral, type B, HAA positive, (drug related). Many years
later, in July 2002, he was diagnosed with hepatitis C.
Although the veteran was diagnosed with viral hepatitis, type
B in service and has a current diagnosis of hepatitis C,
there is no competent medical evidence that his current
hepatitis is etiologically related to his condition in
service. There is no evidence of residuals of viral
hepatitis, type B. There is no indication that the veteran's
hepatitis B during service contributed to, or is in any way
related to, his current hepatitis C. Moreover, viral
hepatitis, type B diagnosed in service was noted to be drug
related. The law clearly states that service connection may
not be established on a direct basis for a disease or injury
that results from willful misconduct, or, for claims filed
after October 31, 1990, the result of his abuse of alcohol or
drugs. See 38 U.S.C.A. §§ 105(a), 1110; 38 C.F.R. §
3.301(a).
The Board has considered the veteran's contention that his
hepatitis C is related to blood transfusion performed during
service. However, the service medical records are negative
for any notation of a blood transfusion during active service
and for his part, the veteran denied a history of blood
transfusions during VA treatment in July 2002. Moreover, the
record is consistent with a history of drug abuse that began
during service and continued for many years post service.
Thus, from this standpoint, the veteran's service connection
claim fails.
The Board notes that, in evaluating a claim, we may consider
only independent medical evidence to support our findings,
and must cite to competent evidence of record to support our
conclusions. See Rucker v. Brown, 10 Vet. App. 67, 74
(1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991),
and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).
Moreover, as sincerely as the veteran may believe in the
validity of his claim, only a medical professional is
competent to address issues of etiology and causation of
disease, and the veteran is not such an individual. See
Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson
is generally not capable of opining on matters requiring
medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d
1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).
Clearly, the diagnosis and differentiation of different types
of hepatitis, and the determination of the origin of the
disease, require highly specialized knowledge.
Based upon the competent evidence of record, and for the
reasons discussed above, the Board finds that the veteran's
hepatitis C was neither incurred in nor aggravated by active
military service. In addition, we observe that the only
chronic liver disease to which the law accords presumptive
service connection is cirrhosis, and that there is no
indication of cirrhosis within one year of service
separation, or even today. The Board also finds that there
is not an approximate balance of positive and negative
evidence as to invoke the reasonable-doubt/benefit-of-the-
doubt rule. The preponderance of the evidence is against a
finding that the veteran's current hepatitis C is related to
service or any incident therein.
II. Entitlement to a rating in excess of 10 percent for
status post gunshot wound of right upper chest and lower neck
A review of the service medical records show that in 1973,
the veteran suffered a gunshot wound to the upper chest and
the right clavicle was partially removed. The exact
circumstances of the wounding are not on file. Apparently
the clavicle was fractured, and part of it was removed.
After treatment, he was returned to duty without limitations.
He did occasionally complain of pain, but in general was
found to have a full range of motion.
The veteran was accorded a VA examination in August 1988. On
examination, the chest was clear to percussion and
auscultation. There was 1+ right trapezius muscle atrophy
and weakness. There was no neurological or vascular deficit
of the right upper extremity. Deep tendon reflexes were
within normal limits.
In an April 1989 rating decision, the RO established service
connection for status post gunshot wound of the upper chest
and lower neck, and assigned a 10 percent evaluation,
effective from August 10, 1987. It was concluded that Muscle
Group XXII was involved. The rating is for moderate muscle
damage to that group.
The veteran was accorded a VA muscles examination in
September 1999. He complained of pain in the region of the
clavicle on fast movements of the right arm. He also
complained of numbness in the middle, ring, and little
fingers. On examination of the right clavicular region
revealed a depression in the middle portion of the right
clavicle. There was a long scar. There was tenderness over
the right medial end of the lateral segment of the right
clavicle. There was a depression secondary to absence of a
portion of the right clavicle.
Muscle strength was 5/5 bilaterally. Sensory examination
revealed intact pinprick over middle, ring, and little
fingers of the right hand. There was no incoordination or
fatigability during movements of the right shoulder. There
was no evidence of weakened movement against strong
resistance.
VA treatment records dated in July 2002 show that the veteran
was seen with complaints of numbness in the right hand. He
was to avoid lifting more than 10 pounds. There was no
decrease in strength, muscle weakness, pain, tenderness, and
no restricted movements.
The veteran was accorded a VA muscles examination in
September 2002. He reported intermittent flare-ups of pain
in the right shoulder that required no medication. On
examination, there was a depression palpable over the lateral
half of the right clavicle. The extent of the bony defect
could not be identified accurately. There was no tenderness
to palpation over the area. The right shoulder and cervical
spine showed full range of motion. There was no atrophy or
any evidence of weakness of muscles. X-rays of the right
clavicle showed evidence of partial resection of the clavicle
with only the distal one-third of the clavicle remaining.
The shoulder joint was intact. The diagnoses were partial
resection of the clavicle and no swelling of the right
supraclavicular region.
During his November 2003 personal hearing before the
undersigned, the veteran testified that the most recent
examination did not reference pain. He stated that he
experienced pain every time he made a sudden motion. He
stated that his collarbone was missing and he experienced
limited motion, and dislocation. The principal manifestation
of the upper chest and neck disability is numbness in the
fingers.
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 38
C.F.R. § 4.1 (2003) requires that each disability be viewed
in relation to its history, and that there be emphasis upon
the limitation of activity imposed by the disabling
condition. 38 C.F.R. § 4.2 (2003) requires that medical
reports be interpreted in light of the entire recorded
history, and that each disability must be considered from the
point of view of the veteran's working or seeking work.
Separate diagnostic codes identify the various disabilities.
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. § 4.7
(2003). Otherwise, the lower rating is to be assigned.
The veteran is service-connected for residuals of status post
gunshot wound right upper chest and lower neck and assigned a
10 percent evaluation under 38 C.F.R. § 4.73, Diagnostic Code
5322. Diagnostic Code 5322 evaluates injuries to Muscle
Group XXII. This muscle group controls the function of the
rotary and forward movements of the head, respiration, and
deglutition. It includes the muscles of the front of the
neck: (1) trapezius I (clavicular insertion); (2)
sternocleidomastoid; (3) the "hyoid" muscles; (4)
sternothyroid; and (5) digastric. Pursuant to Diagnostic
Code 5322, a 10 percent rating reflects a moderate
disability. A 20 percent evaluation is assigned for a
moderately severe disability. The maximum rating of 30
percent is assigned for severe disability. See also
38 C.F.R. §§ 4.55, 4.56. Also potentially relevant is 38
C.F.R. § 4.71a, Diagnostic Code 5203 (2003), pertaining to
impairment of clavicle.
As noted above, the 10 percent disability rating presently in
effect contemplates moderate disability. For a 20 percent
rating to be assigned, the veteran must exhibit symptoms
comparable with a moderately severe disability. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.73, Diagnostic Code 5322. In this
case, the medical evidence shows that the veteran sustained a
gunshot wound to the right upper chest and lower neck. This
injury resulted in partial resection of the clavicle.
Despite the veteran's complaints of numbness in his fingers,
the most recent examination is consistent in showing no loss
of muscle tissue, fatigue, atrophy or weakness of muscles.
There was on evidence of objective pain. The right shoulder
and cervical spine showed full range of motion. The shoulder
joint was intact. There was a depression palpable over the
lateral half of the clavicle, however, there was no
tenderness to palpation over this area. In essence, the
evidence reflects no more than moderate impairment, and a
rating in excess of 10 percent is not warranted under
Diagnostic Code 5322. There has been no clinical
confirmation of any neurological abnormalities.
The Board has considered whether the veteran is entitled to a
higher rating under the provisions under Diagnostic Code
5203, pertaining to impairment of the clavicle or scapula. 38
C.F.R. § 4.71a. That provision allows for a compensable
rating for malunion of the clavicle or scapula, or for
nonunion of the clavicle or scapula without loose movement
(10 percent), and for dislocation of the clavicle or scapula,
or for nonunion of the clavicle or scapula with loose
movement (20 percent). 38 C.F.R. § 4.71a, Diagnostic Code
5203 (2003). In this regard, there are no clinical data to
substantiate dislocation of the clavicle or scapula, or for
nonunion of the clavicle or scapula with loose movement so as
to warrant an assignment of 20 percent. 38 C.F.R. § 4.71a,
Diagnostic Code 5203.
Additionally, there is no evidence that a separate rating
should be assigned for any scars related to the service
connected lumbar disc disease as there is no showing that the
scars are symptomatic. 38 C.F.R. § 4.118, Diagnostic Codes
7800, et. al. (prior to and from August 30, 2002); See
Esteban v. Brown, 6 Vet. App. 259 (1994) (providing for
separate ratings for residuals of an injury to include
painful scars and muscle damage if the assignment of the
additional rating did not violate the prohibition against
pyramiding under 38 C.F.R. § 4.14).
Finally, the Board considered whether the appellant is
entitled to an increased evaluation on an extraschedular
basis, but finds that the evidence of record does not present
such "an exceptional or unusual disability picture as to
render impractical the application of the regular rating
schedule standards." 38 C.F.R. § 3.321(b)(1) (2003). In
this regard, while the veteran has reported to missing a day
or so from work due to his service-connected disability, the
record does not reveal that residuals of gunshot wound to
upper chest and lower neck standing alone has resulted in a
marked interference with his employment. Moreover, the
veteran's service connected disability has never necessitated
a period of hospitalization. In the absence of factors such
as a marked interference with employment, or other unusual
factors, the Board finds that criteria for the assignment of
an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1)
are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339
(1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to service connection for hepatitis C is denied.
Entitlement to a rating in excess of 10 percent for status
post gunshot wound to the right upper chest and lower neck is
denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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